Principled Approach to Hearsay

R v. Post Principled Approach Summary

1. 
   Hearsay is out of court statement for truth of contents, w/o contemporaneous opportunity to cross-ex declarant
   
2. 
   Hearsay evidence is presumptively inadmissible
   
3. 
   It is inadmissible because generally it’s not possible to test reliability of hearsay statement
   
4. 
   Hearsay statement may be admitted for its truth if shown to be both necessary and reliable
   
5. 
   Its reliability must be sufficient to overcome dangers arising from difficulties of testing it
   
6. 
   Onus of establishing on BOP both necessary and reliability is on person seeking to adduce evidence
   
7. 
   Overarching principle is trial fairness: rights of accused, societal concerns including truth as goal of trial process
   
8. 
   2 main ways to Reliability: i. Circumstances when statement made, give no real concern about its truth, as in dying declarations, spontaneous utterances, Khan/Smith; ii. Its truth and accuracy can be sufficiently tested, like oath or equivalent, chance to observe statement being made (ex video), or to cross ex on earlier statement KGB
   
9. 
   Trial fairness means PV over PE
   
10. 
    TJ satisfied on BOP that statement wasn’t from coercion i.e. threats, promises, leading excessively by authority figure/investigator
    
11. 
    Threshold reliability (legal question for judge) vs. ultimate (trier of fact)
    
12. 
    Starr extrinsic not allowed – but in Khelawon that was overturned; take functional approach
    

• 
  Old approach problem: Highly reliable, conclusive proof excluded on basis it did not fit within “course of duty” or “business record” exception as there was no evidence that maker of record was dead
  
• 
  Each car has engine and chassis number, and a block number, indelibly stamped on engine; workman writes down the 3 numbers on a card which is destroyed after being photographed on microfilm
  

• 
  Accused charged with buying wrecks, stealing new cars ID, then affixing chassis and engine number plates from wrecks to stolen to make them look genuine and sell
  
• 
  Different block number proves not genuine; microfilm would prove conclusively accused sold stolen cars
  

• 
  But exception didn’t apply: author of record couldn’t be determined and dunno if he’s dead
  
• 
  Maj says: we’re going to be technical, not principle or common sense, because being flexible is against public policy by creating uncertainty; let parliament fix disagreement between strict rules and common sense
  
• 
  Minority (Lord Pearce) says rules created by judges over time, so change them when it makes sense; justice shouldn’t be blind to truth; what would witness say anyway about his writing in cross-ex, yeah I wrote it down, wouldn’t change trustworthiness of evidence
  

• 
  Business records; court should adopt minority view in Myers; Don’t need author of record to be dead
  

• 
  Girl told mother K doctor “peed in her mouth”; by trial girl didn’t remember but mother remembered what daughter told her and wants to testify; kid had wet spot on sleeve which was mix of semen and saliva
  

• 
  Girl not competent under CEA, but SCC later found that was wrong , just needed to promise to tell truth
  

• 
  Mother’s statement didn’t fit any categorical hearsay exceptions, not res gestae, obviously hearsay
  
• 
  Categorical exceptions create certainty but inflexibility, moving to Principled Approach
  
• 
  Necessary: yes, girl found incompetent to testify herself, also concerns of psychological trauma
  
• 
  Reliable: yes, statement made in disinterested manner, she was too young to have known that what happened was a sexual assault, made before any suggestion of litigation, no reason to fabricate, statement corroborated by wet spot; rule be applied to kids more liberally esp. with sex assault
  
• 
  From Ares v. Venner could require kid to be present for cross-ex, but reliability could be matter of weight for jury to determine, not mandatory – receive comments if they meet necessity and reliability
  

• 
  S charged with killing; deceased called mother – first two saying that S had left her at the hotel, 3^rd saying he came back and is driving her home, 4^th saying she was on her way, body found near that payphone
  
• 
  Necessity met for all of the phone calls: deceased’s statements NOT present intentions or state of mind exceptions
  
• 
  First 2 calls: reliability met, deceased had no reason to lie
  
• 
  Third and fourth call: reliability not met
  
  • 
    Reason to lie: alleviate worrying, prevent mom from calling P, who deceased didn’t like, to pick her up
    
  • 
    Mom had called her a cab which denied her fare; she was seen getting out of cab and going directly to phone booth, suggests lack of time to confirm S had come back and he was going to give her a ride
    
  • 
    Deceased travelling under false name with stolen CC, capable of lying
    
• 
  Crown wins to get 2 hearsay statements in, but both about how Larry isn’t there which doesn’t help their case
  
• 
  Court is looking at the way the statement came about, circumstances indicating nothing to be gained by cross-ex and no motive to mislead; let jury decide weight; admit statements that meet necc/reliab and of PV over PE
  
• 
  Reliability: going to inherent nature and circumstances of giving statement, like Khan, unlike KGB
  

• 
  KGB charged with murder, 3 friends said KGB told them he did it, at trial all refused to adopt prior statements, admitted they said it but they were lying to exculpate themselves from involvement; all 3 pled guilty to perjury
  
• 
  Crown wants prior out of court statements in police reports/video of statements to police for truth of contents
  
• 
  Hearsay:
  

1. 
   Prior statement relating direct evidence about material fact (I saw Y fire the gun) – no barrier
   
2. 
   If repeating evidence of another person (X said he saw Y fire the gun) – not substantively admissible for truth of other person’s evidence, could prove that statement made to the witness not that Y fired gun
   
3. 
   Present case (Y told me he fired the gun) relates hearsay, repeats evidence of another person like ii. but – exception applicable because admission applies to prior statement, as if prior statement had been witness’ sole testimony, circumstantial guarantees can allow it in
   

• 
  Crucial that matters in prior statement would have been admissible if offered as witness’ sole testimony
  

• 
  Necessity: yes, only other evidence was “dock” ID of accused by deceased’s brother, unreliable
  
• 
  Reliability: sets out standard for admitting prior inconsistent statements
  

1. 
   Must prove on BOP statement was voluntary
   
2. 
   Dangers: no oath, no presence of witness, no contemporaneous cross-ex
   
3. 
   Reliability concern over 3 conditions alleviated if: police put witness under oath before court, warn witness of criminal repercussions for lying, available video, video in real time so demeanour and any prejudicial events can be seen, witness produced and available for cross-ex
   

• 
  Videos big part of how statements for truth of contents can be taken out of court, after Milgaard procedure
  
• 
  Unlike Smith, this isn’t inherent circumstances when statement given, but other technical 3 Conditions, shows other way of ensuring statement is reliable if those conditions met
  
• 
  Voluntariness of evidence needed on BOP; while test on proof is BRD
  
• 
  (Concurring) Conditions for determining admissibility: a) evidence in prior statement would be admissible if given in court; b) statement voluntarily by witness, not from undue pressure/threats/inducements; c) statement made in circumstances, viewed objectively, would highlight importance of telling the truth to the witness; d) statement is reliable as fully and accurately transcribed or recorded; e) statement made in circumstances that witness would be liable to criminal prosecution for giving deliberately false statement
  

• 
  Spousal competency; not KGB but uses process for prior preliminary inquiry evidence; necessity test, and she was previously under oath and cross-ex’d, fulfils reliability
  

• 
  Deceased gets out of jail, spends evening with Gf1, next day with Gf2 and they go drinking, meet with couple The Balls, will give them ride home, drunk; waiting at gas station, Gf1 comes up, concerned that Gf2 is there, doesn’t confront him yet; Gf1 talks to deceased – she is witness, relevant statement: deceased says I have to go with Robert (accused) to do Autopac scam and I’ll get $500 for wrecking vehicles for insurance purposes
  
• 
  Accused said “we better get this done now”, The Balls say they leave when Gf1 talking to deceased; notice there’s car following, maybe accused; Gf1 sees something on TV about a car she says “I think I saw that with accused in it when we’re at gas station”; other witnesses hear popping and crunching, deceased and Gf2 killed in car
  

• 
  “I’m going to do Autopac scam” Crown said proves he intended it, more likely carried it out, and impermissible argument that deceased carried out = deceased’s intention used to prove accused intention
  
• 
  Did exception for present intention meet tests of necessity and reliability; in contest of traditional and principled approaches, traditional must yield to comply with necessity and reliability requirements
  
• 
  Traditional doesn’t require statement be made in non-suspicious circumstances, so it didn’t meet reliability; so we must now read in that statement not made in circumstances of suspicion
  
• 
  Court said circumstances of suspicion: Gf1 being covert, mad, deceased’s statement may be excuse so he can go with Gf2, she says unusual for him to talk about business, suspicious that he’ll actually carry it out
  

• 
  Double hearsay: Intention of declarant to establish intention of 3rd party (accused) aka accused telling deceased he intends to do it, that’s how accused knows deceased intends it, deceased tells declarant accused intends to do it; or acc tells 3P who tells deceased who tells witness
  
• 
  Division of duties between trier of law (threshold reliability) and of fact (ultimate reliability), threshold must be limited, look at statement itself and how it came about, not in relation to rest of case/evidence [but that’s inconsistent with Khan which considered corroborating evidence]
  
• 
  Where evidence fits an old categorical exception, it is presumptively admissible, but open to other side to argue that evidence is not necessary/reliable, so principled approach trumps categorical
  

• 
  Necessity met because co-accused in a conspiracy case isn’t compellable one against other (since it’s both of their trials), undesirable to try them separately; inherent value of statements can be lost to time
  
• 
  Traditional exceptions still in place, but can be challenged to determine if it’s supported by indicia of necc/reliab, exception can be modified to bring it into compliance
  
• 
  In “rare cases” evidence falling within existing exception may be excluded where indicia absent in particular circumstances of the case; if evidence doesn’t meet hearsay exception it may still be admitted where indicia are established on voir dire
  

• 
  K charged with assaulting residents of seniors home, 4 of 5 residents dead by time of trial, 5^th not competent to testify; residents had given statements to police and others about abuse, videotaped- KGB principles, not under oath, but warned of legal jeopardy of giving false evidence, did have full video, and witness had died before trial
  
• 
  Necessity: met – none of victims available to testify
  
• 
  Reliability: videotaped evidence not reliable due to circumstances
  
  • 
    Statements cause concerns of mental competency, understanding of consequences, being influenced to make statements by disgruntled employee; injuries could have been caused by falling down
    
  • 
    Officer admitted to having to prompt at certain points to get S back on topic
    
  • 
    Statements by other victims not “strikingly similar”, posed difficulties on their own; would have had to be accepted based on their own inherent trustworthiness
    
  • 
    Problems with police actions: while victim alive could take commission evidence under CC
    

• 
  Not enough to say witness died, police must take steps while he was alive to make evidence good
  

• 
  Starr threshold and ultimate reliability separation makes sense, but sometimes threshold means you must look at corroborating evidence like Khan; the two strands of Khan/Smith and KGB aren’t mutually exclusive, may have aspects of both which together meet reliability standard
  

• 
  Court taking “Functional” approach to Reliability
  

• 
  Criticism: Crowns must needs voir dire KGB statements, and lead corroborating evidence to meet reliability standard; even if not supposed to run full trial before it goes to trier of fact they’re doing it, more discretion to court, longer voir dires
  
• 
  Two ways to be satisfied as to reliability:
  

2. Functional substitute for oath, observation, and cross-ex: video evidence, party opposing statement has opportunity to cross-ex witness in full so they can say why prior statement not true, trier of fact convinced no pre-recording malignant influences KGB

• 
  Concerns about credibility of witness are not the concern of the principled approach, they can be addressed by cross-ex; concerned about reliability of declarant and their statement
  
• 
  Remember, presumptively inadmissible hearsay, do analysis, otherwise might risk reversing onus
  
• 
  Reliability types (threshold and ultimate) not mutually exclusive
  

• 
  C charged with murder, had confessed to Mrs. C before they were married, Mrs. C gave statements to police while they were estranged, at time of trial C’s had reconciled
  
• 
  Statements could not be admitted through hearsay because to do so would be to violate principle behind spousal incompetency rule
  
• 
  Avoiding Spousal Incompetency rules by doing Principled Approach would be back-dooring it; clearly shows why you can’t use principled exception to let in otherwise inadmissible evidence
  
• 
  Note re reliability: just because Mrs. C had made similar statements to several others, this does not mean they are reliable – she could be a consistent liar
  

OPINION EVIDENCE

The General Exclusionary Rule

Opinion evidence is generally inadmissible –role of witness is to testify to facts of which they have personal knowledge, opinions based on those facts generally irrelevant and therefore inadmissible

• 
  Fundamental principle of system of justice: up to trier of fact to draw inferences from the evidence and form his opinions on the issue in the case; facts and inferences are building blocks of opinions R v. K(A) 1999
  
• 
  Inference: forming conclusion from factual premises; I’m wet and was outside, so it was raining outside= fact; see someone coming in with wet jacket and umbrella, you infer it’s raining= inference, indirect circumstantial evidence not opinion
  
• 
  2 exceptions: Lay opinion; Expert opinion
  

Lay Opinion Exception

• 
  Ordinary witness permitted to communicate perceptions in form of opinion on matters that are:
  
  • 
    Within common knowledge
    
  • 
    Based on multiple perceptions that can best be communicated in a compendious format
    
• 
  Opinion must be something that an ordinary person can testify & give an opinion on:
  
  • 
    Identification of handwriting
    
  • 
    Apparent age
    
  • 
    Bodily plight or condition of a person, including death/illness
    
  • 
    Emotional state of a person (distressed, angry, etc)
    
  • 
    Condition of things (new, worn)
    
  • 
    Certain questions of value – ex. Jaguar drives by and you know it’s worth more than a Toyota
    
  • 
    Estimates of speed & distance
    
  • 
    Have witness state opinion, then describe exactly what they observed that led to opinion
    
• 
  Admissibility:
  

• 
  Evidence must be “helpful” witness is in better position to form the conclusion
  
• 
  It must be sort of thing upon which non expert can form an opinion
  
• 
  Opinion must be really just “an abbreviated version of the witness’ factual observations (and inferences) ” in a situation which it would be cumbersome or impossible to break down the facts
  

• 
  May not give opinions on a legal rule (can say someone driving carelessly, not negligently – that’s legal standard)
  
• 
  Ex. I’ll never forget those cold blue eyes – may sound like true fact; but it’s sufficiently unreliable that it requires special warning to jury before they rely on it
  
• 
  When someone ID’s person in court room, they are forming opinion from the facts and circumstances that this is the person they saw on the earlier occasion; need to justify that opinion
  

R. v. Graat 1982 SCC

• 
  G charged with impaired driving, officers gave said based on accused’s behaviour it was their opinion that he was driving under the influence of alcohol: court admitting opinion evidence on the very issue in the case – was G driving while impaired
  
• 
  Opinions about intoxication within abilities/capacities of the lay person, reasonable to allow witness to give an opinion if it is compendious to a statement of fact – opinion evidence accepted
  

Expert Opinion Exception

• 
  Expert evidence is an opinion that the person gives as an area of his expertise
  
• 
  Provides ready-made inference when too complicated, or break down so trier of fact forms own conclusions K(A)
  

• 
  Problem: Doctors don’t understand difference between advocating for medical path and advocating legally for outcome; experts can be influenced by people who hired them, like engineers
  
• 
  Problem: scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, accepted as virtually infallible, more weight than it deserves Mohan
  

Presentation and Evaluation of Expert Evidence Paciacco and Struesser
1) Expert Training

• 
  General info; can be done without expert commenting on the case, trier of fact makes own conclusions
  

• 
  ex. Phenomenon that abused children may continue to associate with their abusers
  

2) Expert Opinions Based Wholly on Personal Observations:

• 
  Testify as eyewitnesses to underlying facts, then offer expert opinion on what those facts signify; rules apply to opinions offered, not testimony they’ve observed unless observations can’t be made without expertise
  

• 
  ex. Burn expert in Marquard who examined the burn before diagnosing
  

3) Expert Opinions based in Whole or Part on Hearsay or Inadmissible Information:

• 
  They may conduct investigation prior to trial that includes interviewing witnesses or reading documents, then offer opinion based on the facts they have “found”
  
• 
  Trier of fact needs to know basis for opinion to be evaluated, expert can relate any inadmissible info they have relied on including hearsay (judge supposed to forget it), allows trier to evaluate opinion, not to be proof of facts
  

• 
  Abbey Rule: before the trier of fact may rely on opinion there must be admissible evidence that proves hearsay info supporting opinion true, not on every fact, just some admissible evidence Lavallee
  
• 
  SCC indicated if expert obtains and acts on info within scope of expertise which doesn’t come from party to litigation, trier of fact can weigh opinion even if it doesn’t meet hearsay exception: B(SA) DNA report
  
• 
  ex. Lavallee psychiatrist diagnosed accused as suffering from battered woman’s syndrome based on conversations with her, mother, hospital records (convo’s couldn’t be proof of events accused described)
  

4) Expert Opinions Secured by Hypothetical Questions:

• 
  Haven’t done own investigation, but asked for opinion on proper inference arising from facts of case evidence
  
• 
  Expert can’t hear evidence and decide truth of facts opinion will be based on; party calling expert gives hypothetical scenario reflecting facts the party hopes trier will find, if trier finds them, the opinion can be applied
  
• 
  Offering conclusion he would draw based on facts offered, so trier may adopt conclusion without critical analysis
  

• 
  Ex. R v. K(A) state of learning about behaviours exhibited by sexually abused children was insufficient to enable expert to respond to hypothetical question about whether complainant had been sexually abused; but sufficient for expert say the kinds of misbehaviours described in hypothetical could be result of sexual abuse, educated jury on what to make of defence claim that c’s behaviours made her less credible person
  

5) Presenting the Expert Evidence and Explaining the Evidence to Juries:

• 
  Counsel who called expert should ask witness to explain himself in language layman can understand Theriault; SCC discourages TJs translating expert evidence into simpler language, technical evidence loses precision
  

The Mohan test for admitting expert opinion evidence

1. 
   Relevance:
   
   1. 
      Threshold requirement – to be decided by judge as a question of law
      
   2. 
      Cost benefit analysis – does PV outweigh PE
      
   3. 
      Is testimony likely to assist or confuse/confound jury in fact-finding mission
      
   4. 
      Is jury likely to be overwhelmed with “mystic infallibility” of evidence, or objectively assess value
      
2. 
   Necessary in assisting trier of fact:
   
   1. 
      Function: provide trier with ready-made inference which trier, from technical nature of facts, can’t form
      
   2. 
      If on the proven facts trier can form their own conclusion, expert not necessary
      
   3. 
      Necessary in providing info outside trier’s experience, subject ordinary ppl unlikely to correctly judge
      
   4. 
      Balance potential to distort fact finding (why credibility or oath-helping evidence excluded) Marquard
      
3. 
   Evidence is not prohibited by any other exclusionary rule
   

1. 
   Even if other criteria are met, not admissible if it would be excluded under any other rule (ex hearsay, opinion of accused’s credibility where credibility not put in issue)
   

4. 
   Expert Qualified
   

1. 
   Must consider if it is a legitimate area of recognized expertise (Trochym), and if the particular expert is qualified in that area of expertise (through knowledge or study)
   

2. 
   Novel Science Factors for evaluating reliability Trochym/ R v. J-LJ 2000 SCC:
   
   1. 
      Whether the technique has/can be tested
      
   2. 
      Whether the technique has been subjected to peer review and publication
      
   3. 
      The known or potential rate of error
      
   4. 
      Whether the theory or technique is generally accepted
      

Re-structuring Mohan Test in Abbey (ONCA)

1. 
   Four Preconditions for Admissibility; how they interrelate
   

1. 
   Subject matter properly the subject of expert opinion evidence
   
2. 
   Relevance
   
3. 
   Properly qualified expert
   
4. 
   Absence of exclusionary rule
   

2. 
   Gate keeper function: is the evidence sufficiently beneficial to warrant the potential harm?
   

Essential Features of New Expert Rules

1. 
   No expert evidence without serving written report 84 days before trial; duty of experts Civil Rule 11-2
   
2. 
   Reply report to be in writing and served 42 days before trial Rule 11-6
   
3. 
   Report must set out qualifications, assumptions, or facts relied on Rule 13-6
   
4. 
   Must set out detail of opinions
   
5. 
   Report admissible in evidence Rule 11-7
   
6. 
   Must produce expert’s file for examination by other side before trial
   
7. 
   Must produce expert for cross-ex at trial on demand Rule 13-7
   
8. 
   Expert can only testify in chief at trial to explain terminology in report, can’t add opinions
   

• 
  Family Rules 13-3, in some cases, must use joint expert ex. To value family home, one appraiser not 2
  

BC Expert Reports Rule 40A:

• 
  Must have 60 days’ notice of expert testimony to avoid “ambush by expert”
  
• 
  Must file report and give notice of:
  
  • 
    Intention to call expert, or Intention to not call expert
    

CEA s.7: in any trial or other proceeding, where anyone intends to examine as witness a professional or other experts entitled to give expert opinion evidence, not more than five can be called by either side w/o leave of court

• 
  Policy: avoid case degenerating into contest between experts
  

Criminal Code s.657.3:

(1) and (2): proceeding by affidavit (get evidence written and disclose to both so they can understand and investigate)

(3) Notice requirement for Crown (notice in reasonable period before trial) and Defence (must meet principle of case)

(4) Remedies for lack of notice (used to be 2 weeks, impossible to find another expert to analyse, respond)

(5) Other orders where notice and materials provided

• 
  Permits expert reports, supported by affidavit, to be admitted on any issue in lieu of calling witness, though court can require them to testify in chief or cross-ex; i.e. experts for blood/breath samples in DUI or narcotics
  
• 
  Accused need not furnish actual expert report until close of Crown case
  
• 
  No authority here to exclude expert evidence for non-compliance R v. Horan
  

BCEA s.10 [supplanted by Civil procedures mostly] – relevant in some administrative tribunals
(3) statement in writing setting out opinion of expert is admissible in evidence if at least 30 days before a copy is furnished to every party adverse in interest

(5) If written statement given, any party can call expert (6) If doing that materially add to written, they pay costs

BCEA s.11: Expert opinion only given if written statement of opinion and facts its formed on is furnished min 30 days before expert testifies, to every party adverse in interest

BCEA s.12: s.11 only applies to civil
Written Authorities to Examine and Cross-examine Expert

• 
  Books and articles technically hearsay when relied upon as providing accurate info; but hearsay explanation of expertise isn’t treated as problematic, it’s inherent in nature of study
  
• 
  Can’t rely on books and articles in examination or cross-ex of experts unless certain criteria are met
  
• 
  Expert can refer to and quote other authorities while testifying in chief if he adopts the opinions by agreement
  
• 
  Expert can be cross-ex’d using texts, articles, studies, only where she acknowledges works used are authoritative; if she accepts authority but rejects conclusions, she can be asked to explain, relevant to her credibility
  

R. v. Mohan

• 
  Facts: M charged with sexually assaulting 4 young girls, wanted expert testimony that circumstances of assault matched someone who was psychopathic, and M didn’t fit that profile
  
• 
  Rejected – science is not developed enough to characterize between “ordinary” and “extraordinary” sexual assaults – not convinced that expert was reliable/that this was an actual area of expertise
  

R. v. Lavallee 1990 SCC

• 
  L shot boyfriend in back of head while leaving room; abusive relationship, claimed self-defense, if she hadn’t shot him he would of shot her
  
  • 
    Admissibility of Psychiatric testimony re: battered woman syndrome, why this may fit self-defence
    
• 
  Relevance: ability of accused to perceive of danger from her mate, which goes to determining if elements of self-defence are made out – yes it is relevant
  
• 
  Necessary: few ordinary people understand battered women syndrome, expert evidence can dispel myths around why women stay in abusive relationships which could adversely affect consideration of bws – yes it is necessary
  
• 
  Subject to any exclusionary rule: hearsay present (L didn’t testify), opinions of expert based on statements made by L to expert, ok, facts upon which an opinion is based do not have to be proven before opinion is admissible
  

• 
  Wilson: up to jury to decide whether accused’s perceptions and actions were reasonable. Expert evidence does not and cannot usurp function of jury; jury is not compelled to accept the expert’s opinions, but fairness and integrity of trial process demand that the jury have the opportunity to hear them
  

• 
  Qualification of expert – psychiatric recognized as expert field
  

• 
  As knowledge expands, capacity of triers to understand types of evidence expands, expert may no longer be required in certain areas
  
• 
  May be required to challenge questionable presumptions about human nature imbedded in common perceptions
  

R. v. Trochym 2007 SCC

• 
  Facts: eyewitness gave testimony at trial that she saw T go into deceased’s apartment on relevant day/time – witness had been hypnotized, this wasn’t revealed at trial
  
• 
  Gate-keeper for reliability like R v. J-LJ
  
• 
  Court sets out/applies factors to consider for evaluating reliability of novel sciences
  
  • 
    Hypnosis accuracy/effect difficult to test
    
  • 
    Hypnosis not new technique, issue with usefulness as forensic tool – has been subject of peer review, weaknesses of hypnosis well documented
    
  • 
    Medical community knows very little on how memory functions/role of hypnosis in recalling memories
    
  • 
    Hypnosis and impact not understood well enough for post-hypnosis testimony to be sufficiently reliable to use in court; admissibility of scientific evidence not frozen in time
    

R v. Walizadah 2007 ONCA

• 
  ID of killer in murder appeal; no eyewitness, no forensic evidence linking appellant to crime; based on testimony of deceased’s wife, Nafisa, that appellant had confessed to her
  
• 
  W says error admitting video re-enactment, and allowing police to provide opinion about what it showed
  

• 
  Ruling: i) not one-sided, ii) fairly accurate, iii) relevant and material
  

• 
  Test for Admissibility of Video Re-enactment
  

• 
  Overriding principle is whether PE outweighs PV
  
• 
  TJ should consider relevance, accuracy, fairness and whether what it portrays can be verified under oath
  

• 
  In MacDonald video lacked PV: many inaccuracies, shot at different time of year and day, different location (city vs. sand quarry), different speed, vehicle; highly PE because portrayed only police officer’s version of events
  
• 
  In Collins: experiment evidence, TJ discretion PE over PV; degree of similarity between replication and original
  
• 
  In Nitkitin: video admissible, some differences but can’t perfectly replicate; key that TJ comprehensive and scrupulous in charge to jury on issue, ID all factors defence says should diminish weight;
  

• 
  “Re-enactment” where replicating conditions and some but not all relevant events
  
• 
  “Experiment” where partial re-enactment purpose to ID ex. Point of first perception of bus
  

• 
  Opinion testimony: significant, not most important evidence; key evidence was surveillance video; TJ told jury; not error even if fact and opinion mix; can’t say van on video seems similar to one driven by accused
  

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